WEB SITE TERMS OF USE 

Thank you for visiting Fun and Function LLC’s Web site (the site at <www.bykidsonly.com> herein referred to as the “Site”). The following terms of use (the “Agreement”) govern your family’s use of this Site. All of the activities on the Site are here for you to enjoy with your child. Features directed to parents and legal guardians (for example, uploading art work) are for parents and legal guardians only. Only you, and not your children, should be sending us information or submitting materials to the Site. Users who are under 18 years old may use the areas of the Site not directed to only parents or legal guardians if a parent or legal guardian consents to such user’s use of the Site, assumes the obligations provided in this Agreement, and assumes full responsibility for such user’s use of the Site. If you are the parent or legal guardian of a user of the Site who is under 18 years old, you consent to such user’s use of the Site, assume the obligations provided in this Agreement, and assume full responsibility for such user’s use of the Site.

 

By accessing, viewing, or using the content, material, or services available on or through this Site, you indicate that you have read and understand this Agreement, and that you agree to it and intend to be legally bound by it. If you do not agree to this Agreement, or if you are accessing this Site from outside the United States, you are not granted permission to use this Site and should exit immediately. In addition, when using specific services or features, you agree to abide by any guidelines or rules posted in connection with such services or features, all of which are hereby incorporated by reference into this Agreement. If you do not agree with any posted guidelines or rules, or with any of this Agreement, you must not use the Site.

 

1. Registration. To access certain areas or features of the Site, you may be asked to register and provide Fun and Function with certain information about yourself. Should you choose to register on the Site, you hereby certify that you have the power and authority to enter into this Agreement and you are at least eighteen (18) years old. You are responsible for providing Fun and Function with true and accurate information about yourself. If you provide any information that is untrue or inaccurate, or which Fun and Function reasonably believes is untrue or inaccurate, Fun and Function reserves the right to suspend or terminate your use of this Site.

 

The use of your account by any individual under age eighteen (18) without your direct supervision is strictly prohibited. Fun and Function reserves the right to deny creation of your account based on its inability to verify the authenticity of your registration information. You shall be solely responsible for maintaining the confidentiality of your password. You are fully responsible for all usage and activity on your Fun and Function account, including, but not limited to, use of the account by any third party. You may terminate your account at any time by contacting us at support@funandfunction.com. Notwithstanding anything else herein, Fun and Function reserves the right to pursue any and all claims against any user of your account.

 

2. Submissions to the Site. By transmitting any suggestions, information, or other materials to the Site, including, but not limited to, posting to blogs, art work, photographs, messages to other Site users, your child’s art work (including, but not limited to, any accompanying drawing, photograph, voice, likeness, child’s first name, child’s age, or child’s city and state of residence) (collectively, “Submission(s)”) to Fun and Function, you automatically grant Fun and Function the royalty-free, perpetual, irrevocable, non-exclusive right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, redistribute, transmit, perform, and display such Submission (in whole or part) throughout the universe and/or to incorporate it in other works in any form, media, or technology now known or later developed for the full term of any rights that may exist in such Submission without any compensation. Accordingly, a Submission must not contain any proprietary or confidential information. Further, Fun and Function is free to use any ideas, concepts, know-how, techniques, and suggestions contained in any communications you send to the Site for any purpose whatsoever, including, but not limited to, creating and marketing products or services using such information. However, Fun and Function does not consider creative ideas, suggestions, or materials other than those it has specifically requested. This policy is designed to avoid misunderstandings if projects developed by Fun and Function's professional staff seem to others to be similar to their own creative work. Accordingly, Fun and Function requests that your comments relate to those services and products offered by Fun and Function, and that you not submit any creative ideas, suggestions, or materials.

 

You hereby consent to the use and reuse by Fun and Function, and any of its respective licensees, designees, assignees, parents, subsidiaries, or affiliated entities and each of their respective employees, agents, representatives, offices and directors (collectively "Fun and Function Parties") of your Submission, as edited, altered, or modified by the Fun and Function Parties and that Fun and Function Parties shall exclusively own all right, title, or interest in the Submission, in any and all media now known or hereafter devised, in any and all versions, worldwide in perpetuity. You agree the Fun and Function Parties may use all or any part of the Submission, and may alter or modify it, including regardless of whether or not your child is recognizable. You further agree that Fun and Function Parties may use the Submission in connection with any promotion, publicity, marketing or advertisement for Fun and Function and its services. You grant the rights hereunder whether or not your Submission is selected for use by Fun and Function. You agree not to make any claim against Fun and Function Parties as a result of the use or non-use of the Submission (including, but not limited to, any claim that such use invades any right of privacy and/or publicity). You understand that you will not be paid any money or receive any form of compensation for giving Fun and Function Parties these rights, or for agreeing to this Agreement. You certify that the Submission is original and that Fun and Function’s use of the Submission will not violate any rights of any other person or entity, including, but not limited to, any copyright rights. YOU HEREBY REPRESENT THAT YOU HAVE READ AND UNDERSTOOD THIS PARAGRAPH AND THAT NO ORAL REPRESENTATIONS OF ANY KIND HAVE BEEN MADE TO YOU. You represent that you are the parent and/or legal guardian of the minor named in, or who may appear in the Submission, and have read this paragraph regarding Submissions prior to uploading, submitting, or sending any Submission, and you are fully familiar with the contents of the Submission.

Fun and Function reserves the right, in its sole discretion, to delete, take down, or refuse to post or otherwise make public any Submissions. Without limitation of the foregoing, Fun and Function shall have the right to use and change the Submissions in any manner that Fun and Function may determine. You acknowledge that Fun and Function may or may not monitor or pre-screen Submissions, but Fun and Function and its designees shall have the right (but not the obligation) in their sole discretion to pre-screen, monitor, refuse, or remove any Submissions. Fun and Function neither endorses the contents of any user communications or Submissions nor assumes responsibility for any material contained therein, any infringement of any intellectual property rights arising therefrom, or any crime facilitated thereby. Fun and Function may delete or terminate, in its sole discretion, any and all information, communication(s), and/or Submissions, at any time, without notice, for any reason, including, but not limited to, online conduct that it believes is harmful to other users, the business of Fun and Function, its affiliates, or other third-party information providers, or for conduct that violates this Agreement or other policies or guidelines set out by Fun and Function elsewhere on this Site.

By submitting any Submission, you represent that you have the full legal right to provide the Submission and that use of the Submission by the Site and all other persons and entities will not (a) infringe any intellectual property rights of any person or entity or any rights of publicity, personality, or privacy of any person or entity, including, but not limited to, as a result of your failure to obtain consent to post personally identifying or otherwise private information about a person; (b) violate any law, statute, ordinance, or regulation; (c) be defamatory, libelous or trade libelous, unlawfully threatening, or unlawfully harassing; (d) be obscene, child pornographic, or indecent; (e) violate any community or Internet standard; (f) contain any viruses or other computer programming routines that damage, detrimentally interfere with any system, data or personal information; (g) result in product liability, tort, breach of contract, personal injury, death, or property damage; (h) constitute misappropriation of any trade secret or know-how; or (i) constitute disclosure of any confidential information owned by any third party.

 

3. Proprietary Rights. As between you and Fun and Function, Fun and Function owns or licenses all data, content, graphics, forms, artwork, images, photographs, functional components, audio clips, video clips and other material for the Site (“Site Material”), as well as the selection, coordination, arrangement, and organization and enhancement of the Site Material. All Site Material is protected, without limitation, pursuant to United States copyright, trademark and other applicable laws. Removing or altering any copyright notice or any other proprietary notice on any Site Material is strictly prohibited. You agree not to sell, license, rent, modify, distribute, copy, exchange, disseminate, archive, reproduce, transmit, publicly display, publicly perform, broadcast, retransmit, publish by hard copy or electronic means, adapt, edit, compile or create derivative works from such Site Material or content, or otherwise use the Site Material in any way for any public or commercial purpose without the express approval from Fun and Function. Any commercial use, reproduction, or distribution of the Site or Site Material without Fun and Function’s prior written consent is prohibited, except, however, you may download one temporary copy of these materials on any single computer, and you may print one copy of these materials for your own personal use, provided that you include a complete copy of this Agreement. You acknowledge and agree that the unauthorized use of the Site Material could cause irreparable harm to Fun and Function and that in the event of such unauthorized use, Fun and Function shall be entitled to an injunction in addition to any other remedies available at law or in equity. All names, trademarks, service marks, symbols, slogans or logos appearing on the Site are proprietary to Fun and Function or its affiliates, licensors, or suppliers. Use or misuse of these trademarks is expressly prohibited and may violate federal and state trademark law.

 

4. Other Sites. The Site may, from time to time, contain links to other Internet Web sites for the convenience of users in locating information, products, or services that may be of interest. These sites and any other sites operated or maintained by third-parties are operated or maintained by organizations over which Fun and Function exercises no control, and Fun and Function expressly disclaims any and all responsibility for the content, information, links, and other items, the accuracy and completeness of the information, and the quality of products or services made available or advertised on these third-party sites. Any concerns regarding any external location should be directed to its respective website administrator, system operator, or web master.

 

5. Site Material. You may not frame, capture, harvest, collect, or create hypertext or other links or connections to any part of the Site or Site Materials without Fun and Function’s prior written consent. While Fun and Function endeavors to keep the Site Material and other content on, in, and through this Site up-to-date, Fun and Function is not responsible for any errors or omissions in the Site Material or content. Fun and Function is not responsible for the accuracy or completeness of any information, text, graphics, forms, links, advertisements, or other items contained within the Site. Fun and Function may make changes to the Site Material, the Site, or the products or services made available in connection with this Site at any time, with or without notice, and makes no commitment to update any of these items.

 

6. Privacy Statement. Fun and Function has a Privacy Statement disclosing what information is collected about visitors, how such information is used, and the steps taken to secure such information. Click here to view the <Privacy Statement>, which is incorporated into this Agreement by reference, as if set forth fully herein. Please be advised that the confidentiality of any communication or material transmitted to Fun and Function via the Site or Internet electronic mail cannot be guaranteed, including, for example, personal information such as your address or name. Alternatively, you may contact Fun and Function by telephone at (800) 231-6329, by email at support@funandfunction.com, or by mail at P.O. Box 11, Merion Station, Pennsylvania 19066.

 

7. Disclaimer of Warranty and Limitation of Liability. THE SITE, AND THE SITE MATERIAL ON AND MADE AVAILABLE THROUGH THE SITE, AND THE SUBMISSIONS, SERVICES AND PRODUCTS OFFERED IN CONNECTION THEREWITH ARE MADE AVAILABLE ON AN “AS IS” BASIS ONLY. USE OF THIS SITE IS ENTIRELY AT YOUR OWN RISK. FUN AND FUNCTION MAKES NO REPRESENTATIONS OR WARRANTIES, AND HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, WITH RESPECT TO THE SITE AND THE SITE MATERIAL ON AND MADE AVAILABLE THROUGH THE SITE, AND THE SUBMISSIONS, SERVICES AND PRODUCTS OFFERED IN CONNECTION THEREWITH, EXPRESS AND IMPLIED, WRITTEN AND ORAL, ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, AND OTHERWISE, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, TITLE, QUALITY, SYSTEMS INTEGRATION, AND NON-INFRINGEMENT. ANY AND ALL INFORMATION PROVIDED BY FUN AND FUNCTION OR UNDER OR IN CONNECTION WITH THIS SITE IS PROVIDED WITH ALL FAULTS, AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH YOU.

 

THE Fun and Function PARTIES shall not be liable for any direct, special, indirect, incidental, consequential, exemplary, extra-contractual, or punitive damages of any kind whatever, including, but not limited to, lost revenues or lost profits, which may or does result from the use of, access to, or inability to use thE Site, the Site Material, or the SUBMISSIONS, products or services connected therewith, regardless of legal theory, whether or not any party had been advised of the possibility or probability of such damages, and even if the remedies otherwise available fail of their essential purpose. IN ADDITION, Under no circumstances will the total liability of Fun and Function OR ANY FUN AND FUNCTION PARTY to you in connection with, based upon, or arising from this Site or your use of this Site exceed $100. Some jurisdictions do not permit the exclusion or limitation of liability for consequential or incidental damages, and, as such, some portion of the above limitation may not apply to you. In such jurisdictions, Fun and Function’s liability is limited to the greatest extent permitted by law.

8. Indemnification. You agree to defend, indemnify, and hold harmless Fun and Function, its affiliates, agents, contractors, and any respective directors, officers, employees, representatives, proprietors, partners, shareholders, servants, principals, agents, predecessors, successors, assigns, and attorneys from and against any and all suits, actions, claims, proceedings (whether judicial, regulatory, or administrative), damages, settlements, judgments, injuries, liabilities, losses, risks, costs, and expenses (including, but not limited to, attorneys’ fees and litigation expenses) relating to or arising from the Site, your use of the Site, your Submissions, your fraud, violation of law, or willful misconduct, and any breach by you of this Agreement.

 

9. Use of the Internet. Use of the Internet is solely at your own risk and is subject to all applicable local, state, national, and international laws and regulations. Neither Fun and Function nor its affiliates will be liable for any loss resulting from a cause over which they do not have direct control, including, but not limited to, failure of electronic or mechanical equipment or communication lines, telephone or other interconnect problems, computer viruses, unauthorized access, theft, operator errors, severe weather, earthquakes, natural disasters, strikes or other labor problems, wars, or governmental restrictions.

 

10. Changes; Termination. The terms and conditions of this Agreement may be changed at any time, with or without notice; your continued use of the Site after any change is made to this Agreement signifies your understanding of and intention and agreement to be bound by such change. It is your responsibility to monitor this Agreement for changes. Fun and Function reserves the right to terminate your access to the Site in the event that you violate any terms and conditions in this Agreement or for any reason whatever or no reason, with or without notice.

 

11. Complaints. If you believe that any content or postings on this Site violates your intellectual property or other rights, please send to Fun and Function (support@funandfunction.com) a comprehensive detailed message setting forth the following information: (1) your name and the name of your company, if any; (2) your contact information, including your e-mail address; (3) the nature and substance of your complaint, the specific rights at issue, and your basis for making the complaint, including the content or posting that is objectionable; and (4) the following statement: “The statements, representations, and assertions made in this message are true, complete, and accurate and I have the full legal authority to make each and every such statement, representation, and assertion and to make and be granted any demand made in this message.”

12. General. This Agreement represents the entire agreement between you and Fun and Function with respect to the subject matter hereof, supersedes any and all prior and contemporaneous written and oral representations, understandings, and agreements between us, and will be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania without reference to its conflict of law rules. By accessing, viewing, or using the Site or the Site Material, you consent to the jurisdiction of the federal and state courts presiding in Pennsylvania, and agree to accept service of process by mail and hereby waive any and all jurisdictional and venue defenses otherwise available. The Site is for use in the United States only. The Site is controlled and operated by Fun and Function from within the United States. Fun and Function makes no representation that this Site or the Site Material is appropriate or available for use in any location or territory, and access to this Site or the Site Material from locations or territories where it is illegal is prohibited. The waiver or failure of Fun and Function to exercise in any respect any right provided hereunder shall not be deemed a waiver of such right in the future or a waiver of any of other rights established under this Agreement.